No. 87-62 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

THE STATE OF MONTANA, ACTING BY AND 

THROUGH THE DEPARTMETN OF HIGHWAYS OF 

THE STATE OF MONTANA, 

Plaintiffs and Respondents, 

-vsTHOMAS M. FEENAN and ROBERT G. FEENAN, as 

tenants in common, JANE DOE FEENAN, as wife 

of THOMAS M. FEENAN; JANE ROE FEENAN, as wife 

of ROBERT G. FEENAN, 

Defendants and Appellants. 

APPEAL FROM: The District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Leif B. Erickson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

McGarvey, Heberling, Sullivan & McGarvey; Allan M. 

McGarvey argued, Kalispell, Montana 

For Respondent: 

W. D. Hutchison argued, Dept. of Highways, Helena, 

Montana 

Submitted: October 27, 1987 

Decided: March 25, 1988 

Filed: ?-- ,. ? t; -> 

_,- -._"-~~"-' 
Mr. Justice William E. Hunt, Sr. , delivered the Opinion of 

the Court. 

This action arose from a condemnation of appellants' 

property which adjoins U.S Highway 40 which is now U.S. 

IIiqhway 2 near Columbia Falls, Montana. The Feenans appeal 

from the judgment of the District Court, Eleventh Judicial 

District, Flathead County. Judgment was entered after a 

seven day trial in which the jury awarded appellants $16,500 

for 2.04 acres of land as "damages for property taken." The 

jury awarded Feenans nothing for "damages or depreciation in 

the market value of the remaining property." 

We reverse and remand for retrial. 

The issue presented for our review in this appeal is 

whether the District Court properly instructed the jury as to 

the application of the common enemy doctrine to the State of 

Montana as condemnor. 

The Feenans own property on both sides of U.S. Highway 

2. In 1981, 2.04 acres of a 240 acre tract were condemned in 

order to expand the road from two to four lanes. The 240 

acre tract was being used for agricultural purposes on the 

date of taking, but had been appraised as suitable for 

residential use with commercial potential. The Feenans claim 

that flooding caused by the construction of the new highway 

has rendered the remainder of their property which borders on 

the new highway unsuitable for commercial use. They wish to 

recover damages for these lands. Most facts in this case, as 

to the cause, effect and extent of flooding, are disputed by 

the parties. 

The Feenan property is located approximately $ mile west 

of Trumbull Creek where the creek crosses the highway. On 

the north side of the highway there was a barrow pit which 

bordered the Feenan property. In May, 1979, Trumbull Creek 
flooded in a 50 year magnitude flood. The floodwaters 

exceeded the carrying capacity of the barrow pit, causing 

considerable flooding on the Feenan property north of the 

highway. South of the highway, the creek had been 

artificially channeled. The southern creek bed had become 

constricted with the growth of vegetation over the years. 

Each party furnished expert testimony by hydraulic engineers. 

The experts testified that the flow of water in Trumbull 

Creek south of the highway was and is insufficient to carry 

the estimated 50 year floodwaters either before or after 

construction of the new highway. The Feenan property south 

of the highway was not affected by the 1979 floodwaters. 

At the time of the 1979 flood, the State cut through the 

old highway to the land south of the highway, diverting the 

floodwaters north of the highway to the land south of the 

highway. These cuts were later replaced by culverts which 

the Feenans allege substantially reduced the potential 

flooding of the Feenans' property north of the highway, while 

still not affecting their southern land. 

In constructing the new, expanded highway in 1984, new 

culverts were put in new locations under the road. Also one 

large culvert was replaced, rerouting an old culvert which 

bent at a right angle under the highway with a larger, 

straight one. The new culvert empties directly into the 

southern channel of Trumbull Creek, allegedly causing erosion 

to the creek's western bank and increasing the danger of 

flooding on the Feenan property south of the highway. The 

barrow pit on the northern edge of the old highway was 

replaced by a shallow ditch, allegedly increasing the chances 

that future floodwaters will extend further north on the 

Feenans' northern property. However, the State ' s expert 

testified that the new culvert would adequately carry the 50 
year floodwaters from the north side of the highway to the 

south side, eliminating flooding on the northern side. 

Trumbull Creek has not flooded the property in question 

since the four lane highway was constructed, but the Feenans 

contends that the value of their commercially valuable land 

has depreciated due to construction of U.S. Highway 2 and the 

consequential future flooding of their property. The Feenans 

allege that they are entitled to damages for their property's 

devaluation. 

Appellants do not argue with the condemnation amount of 

$16,500 awarded to them by the jury. They contend that they 

are also entitled to compensatory damages for the depreciated 

value of their property caused by flooding which was 

exacerbated and altered by the construction of U.S. Highway 

2. They argue that the doctrine of "common enemy" and 

"reasonable construction," which are applicable to 

neighboring private landowners, cannot be used to limit 

liability of a state agency from its constitutional duty to 

pay just compensation for property taken or damaged in the 

exercise of its power of eminent domain. Art. 11, $? 29, 1972 

Montana Constitution. 

The common enemy doctrine provides that a landowner is 

not liable for vagrant surface waters which cross his land 

and go onto his neighbor's land. That water is the common 

enemy of both landowners. Roop v. Anaconda (1972), 159 Mont. 

28, 494 P.2d 922. In diverting such waters, the landowner is 

limited to reasonable care in avoiding damage to adjoining 

property. O'Hare v. Johnson (1944), 116 Mont. 410, 153 P.2d 

888. 

The land in question was appraised by appellants' expert 

as worth $6,600 to $7,500 per acre before flooding. After 

taking, due to flooding restrictions, the appraiser estimated 

the land to be worth only $2,000 per acre. 
Appellants specifically argue that two jury instructions 

offered, but not given by the court deprived them of 

presenting their contentions and possible jury argument on 

the instructions. See Tacke v. Vermeer ~anufacturing Co. 

(Mont. 1986), 713 P.2d 527, 43 St.Rep. 123. 

Instruction D-25 was offered by the Feenans for the 

purpose of instructing the jury as to a landowner's duty to 

their neighbors when constructing ditches or altering the 

flow of vagrant surface waters to alleviate flooding caused 

by highway reconstruction. D-25 read: 

An uphill landowner owes no duty to his downhill 

neighbor to prevent the encroachment of surface 

waters from his property onto his neighbor's. 

However, a landowner who actively diverts waters 

must act reasonably in consideration of the 

foreseeability of injury to the neighbor's property 

and the amount of injury thereto. The law does not 

countenance the principal that one tract of land 

may be reclaimed at the expense of the destruction 

of another without just compensation. 

The court read all but the last sentence of this 

instruction to the jury. Appellants contend that by removing 

the last sentence of this instruction, the court erroneously 

instructed the jury that any landowner, including a 

condemning agency, could take any reasonable measures to 

divert floodwaters without paying just compensation. 

The court then refused to read the Feenans' proposed 

instruction no. D-28, on the basis that D-25 covered the 

Feenans' contentions relating to the flooding issue. 

The Feenans' proposed instruction no. D-28 read: 

You are instructed that if reconstruction by 

Plaintiff has caused a condition which has or will 

produce intermittent but inevitable recurring 

flooding, then Defendants should be justly 

compensated by said Plaintiffs, or Plaintiff for 

the depreciation if any, to the fair market value 

of Defendants' property resulting therefrom. 
Appellants allege that due to these erroneous omissions 

in the instructions presented to the jury, the jury ignored 

the loss in fair market value of the Feenans' property upon a 

finding that the State's highway construction and divergence 

of the floodwater was reasonable. We agree with appellants1 

argument. 

Art. 11, § 29 of the Montana Constitution states: 

Private property shall not be taken or damaged for 

public use without just compensation to the full 

extent of the loss having been first made to or 

paid into court for the owner.. . . 

This clause of our Constitution distinguishes land sales 

from condemnation proceedings. It distinguishes a sale 

between private landowners from a "taking" between a 

condemning agency and a private landowner. 

The leading Montana case which comes closest to 

addressing the issue at hand is State Highway Commission v. 

Biastoch Meats, Inc. (1965), 145 Mont. 261, 400 P.2d 274. In 

Biastoch, the State condemned private property around a meat 

packing plant to build a highway. The resulting construction 

eliminated a drainage channel, completely blocking the 

natural flow of a creek. The new channel was diked causing a 

flood basin that inundated the packing plant. This Court 

held that the State acted unreasonably in this instance and 

the Biastocks were awarded compensation not only for the 

condemned land but also for the value of their business. 

The State contends that language in Biastoch extends the 

application of the common enemy doctrine to condemning 

agencies. We disagree. The relevant language in Biastoch 

cites OIHare v. Johnson (1945), 116 Mont. 410, 153 P.2d 888. 

OIHare cites language which allows a landowners to change the 

flow of water on his property as long as it is not done with 

"malice or negligence." Newton v. Weiler (1930), 87 Mont. 

164, 286 P. 133. We do not see how malice or negligence is 
relevant in this context, but hold as accurate as a matter of 

law the premise that " [tlhe law does not countenance the 

principle that one tract of land may be reclaimed at the 

expense of the destruction of another without compensation" 

(Cite omitted.) O'Hare, 116 Mont. at 418, 153 P.2d at 891. 

Although the Feenans' land is not being destroyed by the 

construction of the highway, there is evidence that periodic 

flooding reduced its value. The State, as a condemning 

agency, is held to a standard of paying just compensation for 

land when the diversion of vagrant surface waters causes 

damage to private lands. 

Jury instructions given by the District Court did not 

adequately state the applicable law in this case. 

Instruction no. D-25 was so confusing that it should not have 

been given. Instruction no. D-28 should have been given. We 

hold that failure to give no. D-27 was reversible error. 

Reversed and remanded for a 

We Concur: 

, Chief Justice 
Mr. Chief Justice J. A. Turnage, dissenting: 

Today the majority chooses to ignore the record, relevant Montana precedent and a jury's finding following a 

seven-day trial. In doing so, the majority reverses the 

jury's finding based on the District Court's handling of two 

jury instructions. The objectionable instructions merely 

serve the majority as a conduit to rule on this issue as it 

pleases. Accordingly, I dissent. 

A review of the record reveals that, sometime prior to 

1979, Trumbull Creek was relocated from its natural banks to 

its present location. Trumbull Creek's present man-made 

channel is not sufficient to contain the Creek during a "50 

year flood." Such a flood occurred in 1979. Trumbull 

Creek's carrying capacity is further hampered by excessive 

vegetation growth along its banks. Experts for both sides 

agree that Trumbull Creek's carrying capacity is limited to 

90 to 120 cfs. In 1979, the spring runoff, estimated at 330 

cfs., was much greater than Trumbull Creek's carrying capacity, causing the creek to flood. 

Unfortunately for appellant State of Montana, Highway 

40 runs through the above-mentioned flood plain. The State 

responded to the 1979 flood, during highway reconstruction in 

1984, by placing four culverts under Highway 40 and by 

replacing Trumbull Creek's passage under the highway with a 

larger culvert. The State's action caused Trumbull Creek and 

its flood waters to pass under the roadway. At trial the 

State argued that its action was not the cause of the flooding; rather, it was the proper and reasonable action in 

response to the flooding. The jury agreed that the State 

acted reasonably. See OIHare v. Johnson (1944), 116 Mont. 

410, 419, 153 P.2d 888, 891. 

Appellants argue that the "common enemy doctrine" and 

"reasonable construction," which are applicable to 
neighboring private landowners, cannot be used to limit 

liability of the state from its constitutional duty to pay 

just compensation for property taken or damaged through 

eminent domain. The majority, without so stating, apparently 

agrees with appellants' contention. 

The majority's position should fail for the following 

reason. In its opinion the majority states: "In diverting 

such waters, the landowner is limited to reasonable care -- in 

avoiding damage - to adjoininq p roperty. 0'Hare v. Johnson 

(1944), 116 Mont. 410, 153 P.2d 888." The majority then 

distinguishes State Highway Commission v. Biastoch Meats, 

Inc. (1965), 145 Mont. 261, 270, 400 P.2d 274, 278-279, which 

holds that the common enemy doctrine allows a condemning 

agency to change the flow of water on his property as long as 

it is not done with "malice or negligence. " The majority 

conveniently ignores that Biastoch is based on OtHare. 

Next, the majority holds the District Court erred when 

it amended jury instruction D-25 to the point that D-25 "was 

so confusing that it should not have been given." 

Instruction D-25, as amended, provides: 

An uphill landowner owes no duty to his 

downhill neighbor to prevent the encroachment of surface waters from the 

property onto his neighbor's. However, 

a landowner who actively diverts waters 

must act reasonably in consideration of 

the foreseeability of injury to the 

neighbor's property and the amount of 

injury thereto. 

Appellants did not object when the District Court gave amended Instruction D-25. After reading D-25, it is my opinion 

that the majority is overreaching to find reversible error. 

The majority also objects to the District Court's 

refusal to give jury instruction D-28. Instruction D-28, 
offered by appellants without citation of authority, 

provides : 

You are instructed that if reconstruction by Plaintiff has caused a condition 

which has or will produce intermittent 

but inevitable recurring flooding, then 

Defendants should be justly compensated 

by said Plaintiffs, or Plaintiff for the 

depreciation if any, to the fair market 

value of Defendants' property resulting 

therefrom. 

Instruction D-28 was more properly stated by Instructions D-3 and D-4, which provide: 

[Instruction D-3.1 The Constitution of 

the State of Montana provides that 

private property shall not be taken or 

damaged for public use without just 

compensation to the full extent of the 

loss being paid to the owners. 

[Instruction D-4.1 You are instructed 

that you should award the defendant as 

just compensation: 

1. the correct fair market value of the 

property actually taken; and, 

2. if the property actually taken is 

part of a larger parcel, the depreciation in current fair market value, if 

any, which will accrue to the portion 

not taken by reason of its severance 

from the portion taken by the construction of the highway in the manner proposed by plaintiff. 

Instruction D-3 instructed the jury that respondent is 

liable for private property taken without just compensation. 

Instruction D-4 instructed the jury that just compensation 

includes fair market value and land value depreciation. 

Instructions D-3 and D-4 properly instructed the jury based 

on the Biastoch-O'Hare rule and Article 11, Section 29, 1972 

Mont. Const. 
In summary, it is my opinion that the majority has 

sought to ignore Montana precedent that the common enemy 

doctrine applies to condemning agencies. The issue at hand 

is now being sent back to the District Court to speculate 

what damages appellants might incur when the next "50 year 

flood" brings its runoff. 

I must disagree with the majority's decision to ignore 

the record, relevant Montana precedent and the jury's 

finding. 

Mr. Justice L. C. Gulbrandson: 

I concur in the foregoing dissent of Mr. Chief Justice 

Turnage.